As of 5:00 p.m. Wednesday, March 25, 2020, Washington State is under a Stay Home-Stay Safe Order: Washington Proclamation 20-25. Oregon is under a similar Stay Home, Saves Lives Order: Oregon Executive Order No. 20-12.
Barker Martin has closed its physical office, but our virtual work-from-home offices are in place and have been up and running for some time now. As a multi-state firm, we have invested in and are accustomed to using technology as an important tool. COVID-19 has affected us, but we are here to take care of our client’s legal needs during this time.
Most community association questions this past week involved a recurring theme…How does COVID-19 impact [FILL IN THE BLANK]???
There was definitely an initial shock for many associations. We are already seeing some associations get past that initial surprise and begin to use this time to deal with non-COVID-19 issues and projects. The fact is, some board members currently have a little extra time to devote to association issues and projects. Staying positive and productive feels good.
In terms of issues related to COVID-19, common questions include:
- How does this impact association meetings, board meetings, and elections?
- What authority does an association have to close or restrict access by owners and occupants to the amenities?
- What authority does an association have to restrict or prohibit visitors, owner vendors, and contractors from coming into the community?
- What can the association do to make sure the property continues to be maintained during this time?
The good news: Associations have options during the State of Emergency. I’ll focus on meetings for the purposes of this article.
Remote Board meetings are generally easier to manage than Association meetings. Use of technology like Zoom, Skype or Go To Meeting are certainly options, especially for Board meetings. A good old-fashion teleconference will also typically work for these meetings. Use of the online technology for sharing documents simultaneously with the phone-in option is also a very popular approach.
In addition to choosing a meeting platform, associations need to consider the requirements for calling and holding board meetings. Various statutes apply to HOAs and Condos in Washington and Oregon with differing notice requirements for board meetings. For example, the Oregon Condo Act requires the posting (or another method) of a board meeting notice three days in advance, except for emergency board meetings. ORS 100.420. The Washington HOA Act, RCW 64.38, doesn’t require notice of board meetings to owners, but requires that meetings be “open for observation” by all owners. It is also important to note that some governing documents include specific notice for board meetings, including time, location, and notice requirements.
The bottom line for board meetings is this: Boards need to evaluate what the applicable statute and their governing documents require in order to conduct a board meeting. If they cannot comply with those requirements as a result of current limitations, then the board should document that fact along with their response.
Association meetings should be similarly evaluated. Associations should adopt resolutions documenting decisions related to their association meetings – which may include actions that may not strictly comply with their governing docs. For example, an association may be required to hold their annual meeting within the first quarter at the association’s principal place of business. That can’t happen. Associations may choose to delay the meeting– which we think is appropriate in this environment. Other options may include “proxy only” meetings. Proxies can be used to both establish quorum and a directed proxy can be used for voting purposes. Other options include the use of online resources and teleconferencing, preferably in combination with other options.
A word of advice when it comes to virtual meetings for all owners: Consider the business that needs to be done before jumping into a large-scale virtual meeting. The platforms may accommodate 200+ people, but documenting quorum or calling for a “live” vote can be cumbersome. If associations choose to use technology, we recommend its use in tandem with the proxy option… and encourage owners to use that proxy option. Lastly, for associations operating under arcane assumptions that proxies need to be notarized, this would be a good time to update their practice and encourage owner participation via proxy – including electronically submitted proxies.
As of 5:00 p.m. Wednesday, March 25, 2020, Washington State is under a Stay Home-Stay Safe Order: Washington Proclamation 20-25. Oregon is under a similar Stay Home, Saves Lives Order: Oregon Executive Order No. 20-12. read more
We are thrilled to introduce Annie Layer as the new firm administrator for Barker Martin! Annie has lived all over North America, but her three years in the Seattle area means she is still a newbie. She adores Seattle and has made many new friends, been on a few marches, and even replaced a hip with titanium! Seattle has so much to offer! read more
This is going to be a short but important reminder regarding community association authority. An association's authority is almost always strongest when dealing with property owned or maintained by the association. In my opinion, it is vitally important that associations embrace that authority rather attempt to assign or allocate responsibility to others. read more
The Pacific Northwest was built in large part on the back of a booming logging industry. Since those early days, the region is known for dense, wild forest lands and progressive forest management. The States of Washington and Oregon take trees very seriously. You may be aware of state laws that severely punish those who cut down trees without permission on the land of another. For example, ORS 105.810 and RCW 64.12.030 allow for triple damages against someone held liable for "timber trespass." read more
Last week I argued a case before the 9th Circuit Court of Appeals. My client owns a hotel on the Oregon Coast. Several years ago, a hundred year storm flooded the lowest floor of the hotel. My client participated in the National Flood Insurance Program, which is a FEMA backed flood insurance program. The majority of the claim was denied because the bottom floor of the hotel was deemed to be a "basement." The insurance company also argued that the proof of loss, which was submitted by the insurance company's agent, was not timely. The District Court agreed with the insurance company and held that despite the insurance company's appointed agent taking control of the process, essentially my client should have ignored the insurance company's instructions. read more